Look. You folks are in a no-win situation here. You have contamination all over the place caused by a known carcinogen. You approved and allowed the release of tons of NOA and it polluted the area.
You knew it was "up there" as far back as 1994. You had RCW and WAC codes that required you to do a thorough environmental investigation with regards to natural resource lands, and your decision was to TRUST your city planner Ms. Fleek, who according to her own testimony in a 2012, deposition held at the city, stated, that she had no formal training in geology, certainly the city’s Planning Commission with all its vast training and experience, knew what it was doing in 1997, when Ms. Fleek handed them phase 3 of 3, from the Burlington Hill Partnership, which from what I have gathered was an illegal “Spot Zoning” annexation request, from her 1994 phase 1 of 3, Industrial Park partners. And just a further note, it is my understanding that Ms. Fleek knew as far back as 1994, that the Burlington Hill Partners were blasting tens of thousands of yards of mineral resource nonmetallic rock starting up the backside of the hill, all this without being in compliance with the statutes? (Wow! I guess we can conclude when “non-compliance with the law” started with Ms. Fleek. Get your checkbook out folks!) According to Ms. Fleek the Planning Commission was also involved, in the approval process with all three phases, she also stated that the commission was very competent, and vastly familiar with the geology of the Burlington Hill site, and why shouldn’t they be, one was an auto mechanic, another was a retired nurse, and then we had a drug store pharmacist, give me a break! This is exactly why smart cities have hearing examiners to prevent incompetent planners from ever approving residential housing on historical asbestos quarries from ever coming to fruition. But miraculously Ms. Fleek had the ability to convince you people, that a 400 ft. high, 192 acre, Old Rock Quarry," “slap dab in the middle” of farmlands, (as Ms. Fleek has state many times throughout her SEPA documents) with tens of millions of yards of mineral resource rock that required not digging, but required a lot of blasting as Ms. Fleek put it! and as Ms. Fleek stated in her environmental documents, along with her 1999 SEPA, (mind you from a Federal Case stand point Ms. Fleek had distributed (mailed) false information throughout the state) that Burlington Hill or “THAT THIS PARCEL, (as she put it) IS NOT DESIGNATED AS A NATURAL RESOURCE LAND;” are you kidding me! Please tell me how “little ole” Ms. Fleek, all by herself, was able to convince you people that a “Old Rock Quarry” is “R-A, Residential Agriculture Zoning,” give me a break! I certainly would be very interested, in knowing the kind of corn, or lettuce you can grow on all that rock up there. Listen, you people had RCW and WAC codes that required you the city, to identify and disclose your resource lands to anybody coming within 500 ft. of Burlington Hill, going back to 1991, are you people clueless or just insensitive? Ms. Fleek was your planner since 1991, and now you’re telling me that she wasn’t aware of her RCW and WAC code duty to disclose, give me a break! She was aware of every case that was held in Skagit County by the Western Washington Growth Management Hearings Board which pertained to Natural Resource Lands in the 1990’s, because they were all held here in Burlington, give me a break! And I am sure she had attend a few of those hearings! She knew of every countywide ordinance that was recorded and in force, (before Burlington Hill was ever a proposed concept) that related to Natural Resource Lands! And with all that said, Ms. Fleek's only excuse, or defense is that Skagit County drew a line on a map that defined the natural resource lands and industries, and the extent of Ms. Fleek's investigation, and ineffectual conclusion was that the "Burlington Hill site, is not designated as natural resource land," this is criminal! Ms. Fleek's stated that her ineffectual conclusion came from Skagit County, the same county that had been in non-compliance and sanction over this same subject repeatedly throughout the 1990's, Ms. Fleek's whole testimony is a "bunch of malarkey," if a jury got a look at Ms. Fleek's deposition, and her 40 years of experience, and was able to determine that she was more than qualified to know what's going on, along with her lack of compassion, and empathy; all I can say is, you're lucky that this is not a criminal case, because folks, they would lock her up, and throw away the key!
And now we are some 16 year later, you didn't tell your neighbors that the approval of your residential development would be sending carcinogens their way. And then, when you finally DID tell them, you said it was okay, as one of your retained attorneys Jill Smith conveyed in one of many colorful declarations, is that the EPA concluded a “wrap up” report that they can’t help! No Ms. Smith, that’s not what the EPA concluded, Federal Agent Smith from the EPA stated that “Burlington Hill appears to be a site of NOA, and we have no statutory authority to clean up naturally occurring asbestos, that has been disturbed through historical mining and more recently, residential development.” And he went on to say that the EPA hosted a meeting with a collection of Federal, state, County, and local agencies on August 14, 2013. And the purpose of the meeting was for the various parties to present their authorities as well as areas in which they lack authority to address NOA. The meeting also allowed EPA to inform the state of Washington that EPA was not going to take a removal action on the Burlington Hill site nor do any site characterization. Nevertheless, EPA has offered to coordinate further meetings and discussions between the agencies that would lead to a policy statement on how public health will be protected through a combination of regulation, permitting, and public outreach. And he stated that based on the information collected and observations made on the site visit, EPA has referred the site to the Washington State Department of Ecology so that they may consider if the site requires further Investigation or clean up, not “wrap up” Ms. Smith! The state may address this site or request federal support as needed. So you see folks, it isn't okay, nor is this case over, thank's to your planner Ms. Fleek!
Now you have this case to defend. Your only reasonable defense is lack of damages: as far as you can tell nobody’s sick. But many are scared they're GOING to be sick. That's speculation, isn't it? A trial judge won’t throw it out as speculation. He will say it's a jury question. Well, let me tell you what a jury is going to do with THAT issue after they hear how you dealt with your unsuspecting neighbors. Let us not forget how Ms. Fleek responded at her deposition, folks, this is your City's primary witness, great huh! If the jury is given the opportunity to really break down Ms. Fleek’ deposition, it will overwhelmingly unleash her lack of compassion, and empathy toward her fellow man. As Jill Smith graciously stated in a declaration, regarding Ms. Fleek’s deposition, that your City's Planning Director with 40 years of experience was unprepared to answer questions concerning asbestos that may be present within the rock formations of Burlington Hill, you’re “damn right” she’s was unprepared to talk about it, she approved it! And as Ms. Smith try’s to clarify to the jury, that Ms. Fleek understands the point of counsel's questions, now! And she’s now ready to answer the questions straightforwardly, as she testifies at trial, are you people kidding! the jury’s already impeached your primary witness as a liar, criminal, and one who lacked compassion, and empathy, have you folks read Ms. Fleek’s deposition? And Ms. Smith thinks that Ms. Fleek’s prior testimony, which plaintiffs’ counsel will undoubtedly seek to introduce at trial, will hopelessly confuse the jury and potentially prejudice the case against the City, No Ms. Smith it will destroy the city!
Don’t forget Ms. Smith, you as one of the primary attorneys in this case, certainly didn't help, with your amazing testimonies in 2015, in which you incriminated the city, in stating that the city has documents in existence, and then confirming that there in archives of public records, and that these records discuss the historical presence of asbestos-related material on Burlington Hill, and that maybe a jury may find that the City is charged with "record notice" of those facts; or not,” are you kidding me! Ms. Smith, your testimony is fatal for the city! You have single handily impeached Ms. Fleek's own testimony, by going against what Ms. Fleek said in one of her meaningless, lackadaisical excuse of an answer declarations, where she stated that, "at the time that SEPA was performed on the Tinas Coma subdivision proposal in 1999, the internet was still relatively new, and searches and search results such as those describe simply were not feasible." And then you decide to put another “nail in the casket,” in the fall of 2015, (3 years after you found out about the asbestos Ms. Smith) and say that the city knew people were working up there, building homes in the asbestos laden zone. And that the City witnessed this activity, and took photos, and that “they” apparently your referring to the home builders, didn't take any precautions regarding asbestos. No one wore a mask! No one was up there in a respirator! Why should they be wearing a mask, or a respirator, “my God,” their building homes for families, not mining for asbestos! What’s the matter with you Ms. Smith, are you dense? And then you go onto say that this is going to be an issue in the case.” “Yeh,” Ms. Smith this is going to be an issue in the case, and that issue is, why in the hell you allowed this to continue? Why didn’t you stop this? What were you thinking in counter suing the plaintiffs and blaming them? We know who screwed-up, we know who approved the plat, and we know who untimely is responsible for exposing the families to this deadly carcinogen, it was your primary witness Ms. Fleek! Give me a break!
So, let's see if we can get this thing away from a jury and into the hands of some arbitrators. At least there you'd have a chance of getting through this without ruining your reputation in the community, and avoid a punitive or a compensatory verdict like the one your city attorney Scott Thomas had stated in one of his declarations, that this case has now been revised into an asbestos contamination lawsuit in which plaintiffs' damage claims are expected to multiply exponentially and if 80 of the lots within the subdivision are occupied by homes with a view, the potential liability faced by defendants could, arguably, run to $80,000,000, exclusive of attorney's fees (80 lots x $lM/house) solely for property damages; liability for additional damages related to asbestos exposure would only multiply that amount. This is going to cost you, and forever embarrass your city...
Public policy can rightly be said to be found in the concept that the public interest gives rise to a special relationship. However, there may be no public policy to be served if the pollution occurs at a time and in a manner when no one knows, or ought to know, that the acts now complained of endanger the public. The existence of facts necessary to make the determination of any such special relationship, as well as the factual background to determine whether public policy principles should be applied, are triable issues best left to the trier of fact.
Furthermore, I would just like to add, that the totality of Ms. Fleek’s actions were ignominious. When I looked back at her 1992 EIS documents, I was able to surmise when she starting forming her belief or definition, if you will, of the legislative intent of the WAC and RCW statutes that somehow they could coexist with her “ideology.” The problem with this disputation folks, is that a jury would look at this from two different angles, did Ms. Fleek misconstrued the legislative intent, or was her motivation intentional. Ms. Fleek had stated, that a city is not required to adopt WAC or RCW regulations regarding resource lands, which addresses or designates resource lands and critical areas within the interim urban growth area boundaries. Here is excerpts of the “Fleek ideology” from that 1992 EIS; as follows:
The Growth Management states that each city shall be included within an urban growth area (UGA) and that an UGA may only include territory that is located outside of a city if such territory already characterized by urban growth or is adjacent to territory already characterized by urban growth. Within that area, urban growth shall be encouraged and outside of that area growth can only occur if it is not urban in nature. The Interim UGA set between Skagit County and the City of Burlington is being studied and a permanent UGA will be established.
EIS evaluates the impacts of the annexation of this land and of all the land that is presently zoned for agriculture located in the Interim UGA. The combined effects of proximity to populated areas and the possibility of more intense uses of the land as indicated by key variables will be evaluated. The Growth Management Act states that agricultural land located within UGA's shall not be designated by a county or a city as agricultural. Land of long-term commercial significance unless the city or county has enacted a program authorizing transfer or purchase of development rights. Areas that should be retained as agricultural resource lands will be identified and removed from the UGA unless such a program is enacted.
Unfortunately folks, your director of planning, and the SEPA responsible official, Ms. Fleek provided for only a superficial urban growth area analysis, and then she places a great amount of focus on the potential conversion of agricultural land to urban uses. There was no explicit discussion addressing the importance of protecting resource land. Lands which the Skagit County has on interim basis identified as resource and critical areas pursuant to Section 17 of the GMA (RCW 36.A.170) will be protected and conserved to the greatest extent possible.
Folks, your planning director misconstrued the Washington's Growth Management Act (GMA) required that Ms. Fleek adopt development regulations that protect critical areas that are required to be designated under RCW 36.70A.170. [RCW 36.70A.060(2) Geologically hazardous areas, one of a number of “critical areas” identified by the Growth Management Act (GMA), are defined as areas that because of their susceptibility to erosion, sliding, earthquake, or other geological events, are not suited to the siting of commercial, residential, or industrial development consistent with public health or safety concerns. [RCW 36.70A.030(9)]
Washington State legislative statutes were very specific, and Ms. Fleek ignored (or defied) the legislative meaning, that geologically hazardous areas are not valued resources like wetlands or wildlife habitat, but rather are hazards to human health, safety, and welfare. The point of the statute was not to ‘protect’ geologically hazardous areas, but rather to protect the public from those geologic hazards. If Ms. Fleek had actually sat down and read, (or maybe a jury would conclude that she had to have known; with all of the hearings and decisions throughout 1990’s in Skagit County) that WAC code 365-190-080(4) states that geologically hazardous areas include areas susceptible to erosion, sliding, earthquake, or other geological events, and poses a threat to the health and safety of citizens when incompatible commercial, residential or industrial development is sited in areas of significant hazard. Some geological hazards can be reduced or mitigated by engineering, design, or modified construction or mining practices so that risks to health and safety are acceptable, but if technology cannot reduce risks to acceptable levels, then building in these geologically hazardous areas is best avoided. If Ms. Fleek had applied this distinction when classifying the geological hazard developing scheme, it would have concluded that the Burlington Hill site should have been avoided.
Another land development hazard is that not all geologically hazardous areas are readily recognizable to the untrained eye. Many persons purchase property or residences only to later find that their investment or personal safety is threatened. Ms. Fleek always considered Burlington Hill “geologically hazardous area,” and she knew this fact years before the development ever came to fruition. Ms. Fleek’s years of experience had trained her that geologically hazardous areas are not valued resources like wetlands or wildlife habitat, but rather are hazards to human health, safety, and welfare.
The legislative intent folks, is not to ‘protect’ geologically hazardous areas, but rather to protect the public from those geologic hazards.
Folks, an often-heard argument is that if an individual wants to take the risk of building in a hazardous area, he should be allowed to do so. The argument goes on that only he will suffer in the event of a failure. In an isolated location, this position might be acceptable. But in urban and suburban settings, land failure on an individual property usually has intense repercussions on the surrounding area. Decreased property values, possible fire hazards, costly public assistance, and possible physical impact on adjacent land are frequent major results. Similarly, a developer often says he is willing to accept the risk in an unstable area. In the end, of course, that risk is passed on to purchasers in the development and to the public agency that assumes responsibility for streets and other public improvements, for the developer is usually out of the picture by the time a failure occurs. Thus the burden is unfairly shifted to all the taxpayers in the community.
Ms. Fleek understood these general arguments as stated above, and she clearly knew that geologic hazards are not private matters, but concern the future residents, and all that comes with... the Burlington Hill development, and it was therefore incumbent upon Ms. Fleek to protect their interest, especially when she knew years in advance that Burlington Hill was a “old rock quarry,” mining operation, and decided to overlook the historical fact that the hill was previously a mining operation for asbestos. Good job! Ms. Fleek.
I have deduced all the facts folks, along with the evidence gathered, and I cannot be convinced, that Ms. Fleek didn't know what she was doing, she knew exactly what she was doing. Ms. Fleek had to disregard legislative statutes in order to get Burlington Hill development approved. Ms. Fleek knew that if she had complied with the law in labeling Burlington Hill’s historic rock quarry as a mineral resource land it would have potentially expose Burlington Hill’s historic quarry mining operation, which would eventually had led to the asbestos, and because of this fact, Ms. Fleek was not going to take any chances. Case in point, she had repeatedly stated in her 1997 Annexation, and 1999 SEPA documents, that Burlington Hill is not a natural resource land. Ms. Fleek’s “smoke and mirror,” “misdirection,” tactics mislead the facts, which she knew by doing so would put her in compliance with the particular RCW and WAC code statutes, along with countywide and your own city ordinances regarding the mandated disclosures, (she a “dodged a bullet,”) which would have been fatal for this development approval.
Finally, in September 2014, the county decides to take off the shelf, and blow the dust off a 1531 page countywide ordinance that was originally recorded in July 2000, which was a dedicated land control ordinance that impacts all properties in Skagit County (specifically Burlington Hill due to the EPA visit and report). What’s going to be a difficult argument in a trial folks, is that the evidence shows that your primary witness was racing to record the plat before the countywide ordinance recorded, but she was able to supersede that ordinance with the recording of the Burlington Hill Preliminary Plat Approval Ordinance on June 8, 2000. Folks, don’t forget what this unrecorded document said in its third paragraph; as follows:
WHEREAS, the requirements of state law and the Burlington Municipal Code which were in effect at the time of preliminary plat approval have been satisfied by the subdivider. Ouch!
Folks, this is not a criminal case, but from the standpoint of reasonable doubt, your primary witness Ms. Fleek has been, unresponsive, or lack thereof in her responses to questions during her deposition and vague in her declarations, with regards to her duty and responsibility in the approval of the Burlington Hill development, and her frequent responses were “I don't know,” “Its public works duty,” I can't remember" and "I FOLLOWED THE WAC CODES, I DID EVERTHING RIGHT.” Thus, a jury in a civil case would argue that Ms. Fleek’s incredibility, draws an allowable inference based on the evidence that would be presented at a trial.
In a criminal case, State v. Curtiss, 250 P. 3d 496 - Wash: Court of Appeals, 2nd Div. 2011, Curtiss challenges the State's closing argument describing its burden:
[R]easonable doubt is not magic. This is not an impossible standard. Imagine, if you will, a giant jigsaw puzzle of the Tacoma Dome. There will come a time when you're putting that puzzle together, and even with pieces missing, you'll be able to say, with some certainty, beyond a reasonable doubt what that puzzle is: The Tacoma Dome.
So, folks, let see if a jury is going to see your case as criminal versus civil. I am going to give you a little insight to the required "Standard of Proof" in a criminal case versus a civil case. Crimes must generally be proved "Beyond a Reasonable Doubt," whereas civil cases are proved by lower standards of proof such as the “Preponderance of the Evidence" (which essentially means that it was more likely than not that something occurred in a certain way). The difference in standards exists because civil liability is considered less blameworthy and because the punishments are less severe. Although criminal and civil cases are treated very differently, one thing for sure folks, many of the people from the Burlington Hill development, will more likely than naught, fail to recognize the conduct of Ms. Fleek’s actions as having any difference between criminal and civil liability.
In civil cases folks, you only need a majority of the jurors to agree on a verdict not 12. Remember, the word "verdict" in Latin means "to speak the truth."
I would just like to state for the record, that in decades of practicing law, I have never dealt with so much corruption like the one your city planner Ms. Fleek had knowingly committed, of all the cities and counties, that I dealt with, (and now you have all this latest evidence getting out to the public) your planner will forever be branded as person who lacked gravitas, compassion, and empathy, all this coming as a result of Ms. Fleek’s actions; is what has put this city interests in jeopardy.
So, in closing, in my competent handling of this particular matter, which included inquiry into, and the analysis of the factual and legal elements of this case against your city, in allowing the approval of a residential development on a known asbestos mine. It is also my duty as a lawyer to protect its client to the fullest extent, but in this particular case, because of your primary witness Ms. Fleek’s actions were so reprehensible, and is a person who lacks gravitas, compassion, and empathy. It is my belief, a jury would impeach her by the end of her first day of a trial. It is also my belief, that all your applicable evidence that your city may assume to have, lacks a substantive argument in this case. So with this “enormous elephant in the room,” and in light of new evidence against your city, which will eventually generate media exposure that you will never recover from, it is my professional opinion, that you expeditiously settle this suit, and prepare for further litigation through a settlement, in the form of a home purchase buyout program, and that you immediately prepare a formal apology letter to your neighbors, for committing this deceitful and fraudulent act.
Very truly yours, “Heart-To-Heart” Discussion